Citation Nr: 0208495
Decision Date: 07/26/02 Archive Date: 08/02/02
DOCKET NO. 96-27 534 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to an initial evaluation in excess of 30 percent
for a depressive disorder.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Bredehorst, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1977 to April
1994 with three years of unverified active duty.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a June 1995 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Winston-
Salem, North Carolina.
This case was previously before the Board in March 2000 at
which time it was remanded for additional development.
FINDINGS OF FACT
1. All of the evidence necessary for an equitable
disposition of the claim has been obtained by the RO.
2. The veteran's depressive disorder is manifested by
depressed mood, sleep disturbance, irritability, and mood
swings, which results in no more than definite industrial
impairment or occupational and social impairment with
occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks.
CONCLUSION OF LAW
The criteria for an initial evaluation in excess of 30
percent for a depressive disorder have not been met.
38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 1991 &
Supp. 2001); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic
Code 9434 (2001); 38 C.F.R. § 4.132, Diagnostic Code 9405
(1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board notes that during the pendency of this appeal, the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000), was signed into law. 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West Supp.
2001). This liberalizing law is applicable to this appeal.
See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). To
implement the provisions of the law, the VA promulgated
regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001)
(to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a)). The Act and implementing regulations essentially
provides that VA will assist a claimant in obtaining evidence
necessary to substantiate a claim but is not required to
provide assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. It also includes new notification provisions.
The RO has not yet had an opportunity to consider the issue
at hand in light of the above-noted change in law.
Nonetheless, the Board determines that the law does not
preclude the Board from proceeding to adjudicate the claim
without first remanding the claim to the RO, as the
requirements of the new laws have essentially been satisfied.
In this regard, the Board notes that as evidenced by the
February 1996 statement of the case, and the December 1996
and June 1999 supplemental statements of the case, the
veteran and her representative have been given notice of the
pertinent laws and regulations governing his claim and the
reasons for the denial of her claim. Hence, she has been
provided notice of the information and evidence necessary to
substantiate the claim, and has been afforded ample
opportunity to submit such information and evidence. The RO
has made reasonable and appropriate efforts to assist the
veteran in obtaining the evidence identified. Moreover, the
veteran has undergone VA examinations in connection with the
claim and there is no indication that there is additional,
pertinent evidence outstanding that is necessary for a fair
adjudication of the issue. In the Board's view the
development and notification undertaken by the RO meets the
requirements of the VCAA and indicates there is no reasonable
possibility that any further assistance would aid the veteran
in substantiating his claim. 38 U.S.C.A. § 5103A. Under
these circumstances the Board finds that the veteran is not
prejudiced by the Board's consideration of the claim, at this
juncture, without first remanding them to RO for explicit
VCAA consideration. See Bernard v. Brown, 4 Vet. App. 384,
394 (1993).
Factual Background
A VA examination report dated in March 1995 reported a
history of chronic fatigue syndrome, periods of depression,
and a tendency to have crying spells. Due to physical
symptoms, depression, and difficulty with concentration, she
felt she was unable to work. Objective findings showed that
verbal productivity, memory, insight, and judgment appeared
adequate.
Private medical records from Albemarle Mental Health Center
dated from April to May 1995 include a screening/admission
assessment which indicated that the veteran was feeling
overwhelmed, depressed, and had mood swings. She felt stress
kept her from maintaining her part-time job. A mental status
evaluation indicated she was depressed and had difficulty
understanding questions at times. Her thought process was
intact and had good immediate recent distance and remote
memory. She did not have hallucinations or delusional
thinking. Her judgment was good. The diagnosis was single
episode of severe major depression without severe features.
Medical records from the Hampton, Virginia VA Medical Center
(VAMC) indicated that the veteran was seen at the mental
health clinic in May 1995. There were no significant changes
in symptoms.
Albemarle Mental Health Center records dated in June 1995
indicated the veteran had in increase in symptoms.
Hampton VAMC records dated in July 1995 indicated that
medication helped her feel in control of anxiety that made
her irritable and moody. She no longer suffered from
uncontrollable crying spells and had kept her temper in
control for one month. She denied psychotic symptoms.
Private medical records dated in April 1996 from Albemarle
Health Center showed the veteran was admitted due to
demonstrated symptomatology of a single episode of severe,
major depression without psychotic features.
The veteran testified during a June 1996 personal hearing
that she had difficulty sleeping, a poor memory, and
compulsive behavior in addition to symptoms previously
reported.
Hampton VAMC records date in August 1996 showed the veteran
complained of sadness, anger, and vegetative symptoms. She
continued to exhibit obsessive compulsive behavior and
symptoms consistent to what has been previously reported.
She denied suicidal and homicidal ideation as well a
hallucinations. Records dated from May 1997 to January 1998
showed improvement of symptoms due to medication.
A January 1998 VA examination report indicated the
improvement of the veteran's symptoms was maintained with
medication. Objective findings indicated that she had no
delusions or hallucinations. Remote and recent memory were
good. Insight and judgment appeared adequate. A GAF score
of 70 was assigned.
Hampton VAMC records dated in August 1998 showed symptoms
were still managed with medication and a GAF score of 60 was
assigned. In January 1999, she reported that she stopped
taking her medication in September 1998 because she was
feeling good. Depression started to resurface by December.
She presently felt irritable and tired. She denied psychotic
and manic symptoms and suicidal or homicidal ideation or
plan. No delusions or hallucinations were elicited. Her
mood was depressed, and insight and judgment were impaired.
A February 2001 VA examination report indicated the veteran
held several jobs since her separation from service. She
complained of panic attacks when she could not find her purse
and when she thought she had left the doors to her home and
car unlocked when she was away from home. Her effect and
thought processes were appropriate. There was no
inappropriate behaviors during the examination and no
evidence of long- or short-term memory deficit. Her
depression was in remission, but there was a good indication
that, due to personal problems, she was acutely depressed in
1987 to 1994 following her discharge from service. In
addition, she had an obsessive/compulsive disorder that
appeared to be causing her more distress. Her current GAF
score was 66 with some moderate symptoms and impairment of
social and occupational adaptability. Her GAF score from
1987 to 1994 was estimated to have been 48.
A Hampton VAMC record dated in July 2001 indicated the
veteran was seen for complaints of a depressed mood with the
onset being 4-5 months earlier. Symptoms included hypomanic,
impulsive buying, and episodes of "never sleeping." She
indicated that these feelings were being replaced by mood
swings and depression. She denied auditory and visual
hallucinations, delusions, and homicidal or suicidal
ideation. There was no evidence she was hyper verbal,
tangential, or had flight of ideas or looseness of
association. She did not exhibit psychomotor retardation or
agitation. The veteran reported feeling angry and sleep
disturbance. Insight and judgment were adequate.
Analysis
Disability ratings are determined by applying the criteria
set forth in the VA's Schedule for Rating Disabilities, which
is based on the average impairment of earning capacity.
Individual disabilities are assigned separate diagnostic
codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
Where an increase in an existing disability rating based on
established entitlement to compensation is at issue, the
present level of disability is the primary concern. Francisco
v. Brown, 7 Vet. App. 55, 58 (1994). However, at the time of
an initial rating, separate ratings can be assigned for
separate periods of time based on the facts found-a practice
known as "staged" ratings. Fenderson v. West, 12 Vet. App
119 (1999).
If two evaluations are potentially applicable, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating;
otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7.
Pertinent regulations do not require that all cases show all
findings specified by the Rating Schedule, but that findings
sufficiently characteristic to identify the disease and the
resulting disability and above all, coordination of rating
with impairment of function will be expected in all cases.
38 C.F.R. § 4.21. Therefore, the Board has considered the
potential application of various other provisions of the
regulations governing VA benefits, whether or not they were
raised by the veteran, as well as the entire history of the
veteran 's disability in reaching its decision. Schafrath v.
Derwinski, 1 Vet. App. 589, 595 (1991).
As a preliminary matter, the Board notes that the regulations
governing psychiatric disabilities were revised, effective
November 7, 1996, during the pendency of this appeal.
Therefore, the claim is reviewed under both the old and new
criteria, in keeping with the United States Court of Appeals
for Veterans Claims' (Court), mandate to have the most
favorable version of the regulations apply to a veteran's
claim. See Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991).
However, the old regulations and accompanying schedule for
rating disabilities apply only through November 6, 1996, as
the effective date rule prevents the application of a later,
liberalizing law to a veteran's claim prior to the effective
date of the liberalizing law. See Rhodan v. West, 12 Vet.
App. 55, 57 (1998)
Pursuant to the schedule for rating mental disorders prior to
November 7, 1996, (38 C.F.R. § 4.132), a 10 percent
evaluation is assigned when the disability symptoms are less
than the criteria for 30 percent, with emotional tension or
other evidence of anxiety productive of mild social and
industrial impairment. A 30 percent evaluation is assigned
when there is definite impairment in the ability to establish
or maintain effective and wholesome relationships with
people, and when psychoneurotic symptoms result in reduced
levels of initiative, flexibility, efficiency, and
reliability as to produce definite industrial impairment. A
50 percent evaluation is assigned when the ability to
establish or maintain effective or favorable relationships
with people is considerably impaired. By reason of
psychoneurotic symptoms the reliability, flexibility and
efficiency levels are so reduced as to result in considerable
industrial impairment. A 70 percent evaluation is assigned
when the ability to establish and maintain effective or
favorable relationships with people is severely impaired.
The psychoneurotic symptoms are of such severity and
persistence that there is severe impairment in the ability to
obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic
Code 9405 (prior to November 7, 1996).
In Hood v. Brown, 4 Vet. App. 301 (1993), the United States
Court of Veterans Appeals invited the Board to "construe" the
term "definite" in a manner that would quantify the degree of
impairment for purposes of meeting the statutory requirement
that the Board articulate "reasons and bases" for its
decision. 38 U.S.C.A. § 7104(d)(1) (West 1991).
The VA General Counsel reviewed this matter and concluded
that "definite" may be construed to mean "distinct,
unambiguous, and moderately large in degree;" and that
"moderately large" describes a degree which is less than
"rather large," since "rather" means "quite," a term
suggesting a higher level of intensity than "moderately."
The General Counsel held that the word "definite" represents
a degree of social and industrial inadaptability that is
"more than moderate but less than rather large." O.G.C.
Prec. 9-93 (Nov. 9, 1993). The Board, is bound by this
interpretation of the term "definite." 38 U.S.C.A. § 7104(c)
(West 1991).
According to the revised regulations of 38 C.F.R. § 4.130,
Diagnostic Code 9434, major depressive disorder, a 30 percent
evaluation is warranted when there is occupational and social
impairment with occasional decrease in work efficiency and
intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactorily, with
routine behavior, self-care, and conversation normal), due to
such symptoms as: depressed mood, anxiety, suspiciousness,
panic attacks (weekly or less often), chronic sleep
impairment, mild memory loss (such as forgetting names,
directions, recent events). A 50 percent evaluation requires
occupational and social impairment with reduced reliability
and productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short- and long-term memory
(e.g., retention of only highly learned material, forgetting
to complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social
relationships. A 70 percent rating is warranted for
occupational and social impairment with deficiencies in most
areas such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as: suicidal
ideation; obsessional rituals which interfere with routine
activities; speech intermittently illogical, obscure, or
irrelevant; near-continuous panic or depression affecting the
ability to function independently, appropriately and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a work-like setting); and an inability to establish
and maintain effective relationships. A 100 percent rating
for PTSD is indicated when there is total occupational and
social impairment due to such symptoms as: gross impairment
in thought processes or communication; persistent delusions
or hallucinations; grossly inappropriate behavior; persistent
danger of hurting self or others; intermittent inability to
perform activities of daily living (including maintenance of
minimal personal hygiene); disorientation to time or place;
memory loss of names of close relatives, own occupation or
own name. 38 C.F.R. § 4.130, Diagnostic Code 9434 (from
November 7, 1996).
In reviewing the evidence of record, the Board finds that the
preponderance of the evidence is against an increased initial
evaluation for a depressive disorder.
In evaluating the veteran's symptomatology under the
schedular criteria in effect prior to November 7, 1996, the
Board cannot conclude that the medical evidence at any time
demonstrates the considerable industrial impairment
contemplated by a 50 percent or greater disability rating.
Despite the fact the veteran indicated that she had several
jobs since separation from service, there is no objective
evidence to suggest that her psychiatric disability was
responsible for her job changes. In fact, the record shows
that medication decreased her symptoms as early as July 1995.
Moreover, the evidence does not reflect any psychoneurotic
symptoms of such persistence and severity as to greatly
impair her occupationally.
Under the schedular criteria that became effective November
7, 1996, at no time has the criteria for a 50 percent or
greater evaluation have not been met. There is no evidence
of memory problems, impaired judgment, or difficulty in
establishing and maintaining relationships. In addition, her
thought process was shown to be intact. Although on one
occasion she was noted to have difficulty understanding some
of the examiner's questions, this isolated incident is
insufficient evidence to show that this results in reduced
reliability and productivity. The Board notes that she
complained of panic attacks; however, the evidence indicated
that this was related to her obsessive compulsive behavior
rather than her service-connected depressive disorder.
Moreover, all of her recorded GAF scores fall between 60 and
70. Score ranging from 61 to 70 suggest that the veteran
exhibits some mild symptoms (e.g., depressed mood and mild
insomnia) or some difficulty in social, occupational, or
school functioning, but generally functions pretty well and
has some meaningful interpersonal relationships. Only once
was she assigned a score of 60, which is indicative of
moderate symptoms. As this score occurred during a time when
her symptoms were well managed by medication and there was no
sign of a deterioration of her condition, it cannot be said
that the score alone is sufficient to warrant an increased
evaluation.
The Board notes that the February 2001 VA examination report
indicates that the veteran was acutely depressed in service
due to a number of personal problems and following her
separation from service. A GAF score of 48 was assigned from
1987 to 1994. Records more contemporaneous to the period
following separation from service, namely a March 1995 VA
examination report, do not reflect the severe symptomatology
contemplated by a GAF score 48 that was assigned
retrospectively by the February 2001 VA examiner. The Board
finds that since there are no medical records following
service that predate the March 1995 VA examination, the
February 2001 VA examiner could have only relied on
information provided by the veteran in order to ascertain the
severity of her disorder and assign a GAF score of 48 for the
portion of 1994 that followed her separation from service.
Since the assessment was not based on medical evidence, the
Board finds that the March 1995 VA examination is more
probative as to the level of her disability following
service. For this reason, the Board finds that there is
insufficient evidence to demonstrate a level of severity in
her disorder following service to warrant an evaluation
greater than 30 percent under the criteria that was in effect
prior to and subsequent to the November 7, 1996, regulation
change.
With regard to the propriety of applying "staged ratings"
as described in Fenderson, the Board finds the application
unnecessary as there was no evidence that her disability
exceeded a 30 percent evaluation after service. Fenderson v.
West, 12 Vet. App 119 (1999).
After consideration of the evidence under both the old and
new criteria, the preponderance of the evidence is against an
evaluation greater than 30 percent; therefore, the benefit of
the doubt doctrine does not apply. 38 U.S.C.A. § 5107(b)
(West Supp. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 54
(1990).
In evaluating this claim, the Board has determined that the
case does not present such an exceptional or unusual
disability picture with such related factors as marked
interference with employment or frequent periods of
hospitalization as to render impractical the application of
the regular schedular standards. 38 C.F.R. § 3.321(b)
(2001).
ORDER
An initial evaluation in excess of 30 percent is denied.
RENÉE M. PELLETIER
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.